What You Need to Know About Legal Separation in Michigan
In Michigan, legal separation is a court-approved arrangement whereby a married couple lives apart and maintains legal responsibility for any children or shared property. It functions somewhat similarly to divorce, although it will not legally end the marriage and requires both spouses to be in agreement about all of the terms of the arrangement. Per Michigan Compiled Laws section 552.6, "a proceeding for separate maintenance may be commenced, either during the pendency of a proceeding for divorce, or subsequent to the entry of a judgment of divorce, for the purpose of compelling an equitable division of property, maintenance and support of the wife and children, alimony, custody of the children, and for other equitable relief." Spousal maintenance or support is ordered when a spouse has a demonstrated need for that support and the other spouse has the ability to provide it . There are a couple of reasons people might choose legal separation over filing for divorce. It allows them to remain married while still living apart and acting independently, doubts about what to do next or lack of the knowledge of marital rights and responsibilities, a period of questioning whether or not the marriage is destructible, and issues of tax benefits or insurance benefits are among those reasons. While there’s no legal formalization of a "trial separation" in Michigan, many couples choose to live apart for a period of time before deciding whether or not to file for divorce. If they do choose to file for divorce, the period before that legal separation applies as a trial separation that cannot be held against them in a court of law. However, terms agreed upon by the spouses—such as who is responsible for paying certain bills or what will happen to the children—may be enforced by a court and put into a formal property settlement agreement.
Who Can Legally Separate?
To file for legal separation in Michigan, either you or your spouse must meet the residency requirement. Under Michigan law, the jurisdictional requirement is that at least one of you must reside for six months in Michigan before filing your separation proceedings. But, in addition to this rule, (1) you must have lived in a county for at least 30 days before filing and (2) at least one of you must live in that county for at least 10 days before filing. If you meet these requirements, you can then commence separation proceedings with the court clerk’s office in your county. Your legal separation must be filed with drawing the specific grounds or reasons.
Although a legal separation does not end your marriage, it can provide many of the benefits a couple enjoys, when they decide to divorce. For example, when entering a legal separation, the judge may divide up marital property or order one spouse to pay alimony. You can also discuss child custody and other matters related to children, as part of a separation. Until your legal separation contract is final, both parties remain legally married.
It is important to understand, however, that in a legal separation, neither spouse can remarry. That is exactly the reason why couples may consider legal separation instead of divorce. Legal separation allows spouses who do not want to live together, while remaining legally married.
The Process of Legal Separation in Michigan
Initiating a legal separation in Michigan starts with the filing of a petition. There is no special form for legal separation, so any party who wishes to file for legal separation must use the same form as a divorce petition, which can be found on the website of the Michigan Court system. A petition for divorce first has to be filed with the court. It is important to pay careful attention to the details on the legal separation petition. While the information for a legal separation petition is extremely similar to that of a divorce petition, it is different, and the distinction should be noted. It is also helpful to obtain a summons from this same website. The summons will need to be served with the petition. They could also be filed together with a proof of service.
Once the petition is filed, the court will issue a summons and schedule the first case management conference to discuss the possible outcomes of the separation. After the court hearing, which is the first step in the separation process per Michigan law, the court will decide whether or not to grant the separation. If it does, the couple will then have to wait at least 60 days to finalize the separation. After this time period has passed, the court hearing will be held, and this will be the final stage in the legal separation process.
Documents Needed to File
Filing for legal separation (or separate maintenance, as the court calls it) in Michigan requires the filing of specific documents with the court. If you choose to represent yourself, these documents are available at the website for the Michigan Supreme Court.
These forms include the case initiation forms, which are required for all types of case filings with the court. The summons is the first of these papers. When your spouse is served with the summons, they will be deemed to have received notice that you have filed a separation action.
The summons must be properly served on your spouse, along with the complaint and a notice of hearing. The complaint is the pleading that states your reasons for seeking a legal separation and establishes the relief or resolution that you are requesting through the court. The complaint must also set forth jurisdictional information so the court is properly apprised of how it has the authority to hear and decide your case. The statutes related to legal separation in Michigan require that you give your spouse three ways of receiving the information described above.
In addition, you will also need to fill out a verification form. This paper requires you to declare under oath that the information you have submitted is accurate to the best of your knowledge and belief.
The final piece of the puzzle is the confidential case information sheet. This paper provides personal information about you and your spouse and is mandatory for all case filings in Michigan courts.
Filing Fees
The cost of filing for legal separation in Michigan can vary significantly, depending on the complexity of your case, the amount of pre-separation work that you have done and whether or not you and your spouse are able to come to an agreement regarding most issues, or whether negotiations become necessary. The primary fees associated with filing for legal separation include:
Attorney Fees: Because the filing process for legal separation does not inherently require the involvement of an attorney, you may choose to file for legal separation without any legal counsel. However, this is rarely, if ever, advisable due to the serious ramifications and complications that can arise during and following the divorce process. The assistance of an experienced Michigan family law attorney will go a long way toward minimizing your expenses and increasing your chances of a successful case outcome.
The average hourly rate for a skilled Michigan family law attorney is between $250 and $400. Most legal issues will take at least 10 hours of the attorney’s time to resolve. Below you will find the resulting costs associated with hiring an attorney to handle your legal separation paperwork.
Filing Fees: In addition to attorney fees , you will also be required to pay filing fees to the court. Filing fees can vary by county, but they generally range from $150 to more than $300 each. To reduce your filing costs, consider filing your divorce paperwork in bulk. For example, you may want to file the divorce paperwork simultaneously with your request for a separate maintenance order so that you only have to pay the filing fee once.
Additional Costs: There are several possibilities for additional costs that can arise when filing for legal separation in Michigan. For example, if you and your spouse are unable to agree on child custody or other issues such as property division, the judge may appoint a mediator to mediate the process — or you may be required to hire a divorce coach. The average cost of a divorce coach is $75 to $150. A mediator may cost $100 to $300 per hour. If you hire a mediator or a divorce coach, you will also need to pay for the staff time it takes for your attorney to prepare for the process and to review the results. This staff time generally costs $250 to $300 per hour.
If you believe you may be filing for legal separation in Michigan soon, contact a Michigan family law attorney to discuss the best time to file and walk you through the filing process to minimize any potential costs involved.
Representation and Legal Advice
In circumstances of legal separation, it is critical that you seek the advice of an experienced attorney. Doing so can mean the difference between a grant of separate maintenance and the complete denial of same.
Your first step in getting legal separation is to contact an attorney. If you have been living in the same home but settled physical boundaries, you may need to file for spousal support to maintain your lifestyle until the legal separation is granted. A lawyer will advise you whether you should file for spousal support as well.
Under Michigan’s divorce and separate maintenance laws, time limits apply to the financial obligations upon which spouses enter into a legal separation agreement. Failure to abide with those time limits, or achieve a longer term agreement with spousal support in a separation agreement, could result in either one spouse being obligated to support the other indefinitely, or a complete denial of spousal support until the final resolution of the divorce.
As Michigan lawyers, we have spent the earliest years of our careers preparing the facts and arguments for trial. Equally important, we have argued the other side of each case represented, allowing us to "know how the other side thinks." We are constantly called upon by clients to do their divorces without a trial. It is likely you will never even see your trial attorney in court. However, you can be assured that your rights are being well protected every step of the way.
There is also the question of availability of legal aid. Legal aid may charge fees based on income. We do not charge based on income. No person, through no fault of their own, should ever think they cannot hire a lawyer because of money.
Finding a lawyer involves conversations about fees and retainer fees. Retainers are not extraordinary charges. Rather, they may only represent the amount needed to get the case started until a court order takes effect that establishes provisions for support. Retainers may be as small as $100 to start a divorce case.
Children and Custody
If you have children, separating under a legal separation agreement will affect them as well. In general, custody will be handled similarly to its impact in a divorce. The differences stem from the fact that legal separation does not result in the end of a marriage, so many of the provisions that will be part of a divorce judgment will not be in affect on a legal separation, such as alimony or division of marital assets. Custody can and often times is determined under a legal separation just like in a divorce. All rights and responsibilities regarding your children should be included in the custody provisions of the legal separation agreement. These provisions will also include the specifics about child support, but unlike a divorce, the issues should be similar to the above on a legal separation. Child support is based on the same variables as a divorce judgment with the only difference being that your income is determined at the time of the separation date (similar to a divorce). Child support should be based on the actual overnights per month the child spends with each parent, any extra costs above basic support, and taxes. A parenting time schedule should also be part of your legal separation agreement, just like it would be in a divorce. Like above, the parenting time schedule will be similar, if not identical. The only thing that will differ is that you will not get the court order on parenting time to much later if you are filing a legal separation, then you would be in a divorce.
Changing or Converting a Legal Separation
If you have entered into a legal separation agreement and find that your circumstances have changed such that the terms of the separation no longer work, there are options for modifying the terms of the legal separation. As with most other contracts, you can modify the terms of a legal separation by entering into a written agreement with your spouse. Once the agreement is signed by both parties, it is filed with the court and incorporated by reference into the existing judgment of separate maintenance.
As an alternative to filing a motion with the court seeking to modify the terms of the separation agreement, you can file a motion requesting that the court convert the legal separation into a divorce. There are provisions for converting this type of proceedings into a divorce in Michigan Court Rule 3.207 . This rule provides that when a motion for a divorce is filed subsequent to a granting of a separate maintenance action, the action must be proceeded with as if it were an original divorce action and the rules governing divorce apply to the action. Note that before a decree of divorce is entered, the terms of the separation agreement cannot be modified without the consent of the other party.
Note that the party who files a motion to convert a legal separation into a divorce must serve the motion with a notice of intent to be divorced on the other party. If the court finds that grounds for divorce exist and the motion is not withdrawn, a judgment of divorce will be entered. In the event that you have not been married long before you see that the marriage does not work, this is probably the choice to make since you can avoid a much greater expense. However, if you have children, assets and debts, the procedure may be lengthy and costly like a divorce so one must carefully weigh the benefits as to your situation.